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172 U.S.

19 S.Ct. 163
43 L.Ed. 430

No. 89.
December 19, 1898.

J. D. Rouse, for plaintiff in error.

Thomas Marshall Miller, for defendant in error.
Mr. Justice BREWER delivered the opinion of the court.

This case comes on error to the supreme court of the state of Louisiana. It is
perhaps the last step in a litigation which has been going on for a quarter of a
century, and which has twice appeared in this court. Johnson v. Waters, 111 U.
S. 640, 4 Sup. Ct. 619; Mellen v. Buckner, 139 U. S. 388, 11 Sup. Ct. 598. In
those cases the full story of the litigation is told. For the present inquiry it is
sufficient to note these facts: Prior to the late Civil War, Oliver J. Morgan was
the owner of five plantations in the state of Louisiana. His wife died intestate in
1844, leaving two children as her sole heirs. The property standing in his name
was community property. 1858 he conveyed the plantations to his children and
grandchildren. The purpose of this conveyance wasFirst, to secure to the
grantees their shares in the property as the heirs of his wife; and, secondly, to
make a donation from himself. He died in 1860. In 1872 certain creditors of
Morgan (creditors of him individually, and not of the community) brought suit
in the circuit court of the United States to set aside the conveyance, and subject
his interest in the property to the payment of their debts. Their contention was
sustained by the circuit court, and its decree was substantially affirmed by this
court. 111 U. S. 640, 4 Sup. Ct. 619. Thereafter, and in May, 1884, the circuit
court appointed a receiver to take charge of all the property conveyed by
Morgan. Melbourne plantation was at the time in the possession of the present
defendant in error, claiming under the conveyance made by Morgan in 1858.
After the appointment of the receiver, the defendant in error, rather than be

dispossessed, leased from him the plantation. The litigation continued, and,
new parties being named, came to this court again in 1891. 139 U. S. 388, 11
Sup. Ct. 598. It was then decided that one undivided half of the Melbourne
plantation belonged to the defendant in error, and that only the remaining half
was subject to the debts of Morgan. The language of the decree was: 'The said
heirs are entitled to have and retain a certain portion of said Oliver J. Morgan's
estate free from the claims of his creditors, as follows, to wit: Two-fifths of the
four plantations, Albion, Wilton, Westland, and Morgana, are directed and
decreed to be reserved for the benefit of the heirs of Julia Morgan, deceased,
and one-half of Melbourne plantation is directed and decreed to be reserved for
the benefit of the heirs of Oliver H. Kellam, Jr., deceased; and that the
remaining interest in the said plantations is decreed and adjudged to be subject
to the payment and satisfaction of the debts due to the administrator of said
William Gay,' etc.; and further, after providing for other matters: 'But, if the
heirs shall not desire a severance of their portions, then the whole property to be
sold, and they to receive their respective portions of the proceeds, but no
allowance for buildings. Any moneys in the hands of the receiver, after paying
his expenses and compensation, are to be divided between the creditors and
heirs in the proportions above stated; applying the amount due to the heirs, so
far as may be requisite, to the costs payable by them.' Two years thereafter the
interest of Morgan in the plantation was sold in accordance with the terms of
the decree. The defendant had paid to the receiver the rent of the entire
plantation from 1884 up to the decree in 1891, but paid nothing thereafter. This
action was commenced by the receiver in the district court of the Seventh
judicial district for East Carroll parish, La., to recover one-half the stipulated
rent of the Melbourne plantation for the years 1891 and 1892, as well as onehalf of the taxes thereon for those years. The defendant answered, not
questioning his liability for the matters set forth in the petition, but alleging that
between 1884 and 1891 he had paid the receiver rent for the entire plantation,
one-half of which had been finally adjudged to be his property, and not subject
to the claims of creditors of Morgan, and prayed to set off the one-half of the
rent wrongfully collected between 1884 and 1891 against the one-half due for
the years 1891 and 1892, and for a judgment over against the receiver for any
surplus. The trial court sustained his defense so far as to decree a full set-off to
the claims of the receiver. The supreme court of the state affirmed the trial
court in this respect, but amended the judgment so 'as to reserve the defendant's
right to demand of and recover from the plaintiff the residue of the amount of
the rents he has collected in excess of the sum actually due by the defendant,
after a sufficiency thereof has been used to extinguish by compensation the
demands of said receiver in this suit.' 49 La. Ann. 668, 21 South. 580.
Whereupon the receiver sued out this writ of error.

Two questions are presented: First, was the defendant entitled to set off against

Two questions are presented: First, was the defendant entitled to set off against
the rent unquestionably due for the undivided half of the plantation for 1891
and 1892 one-half the amount paid by him for rent between 1884 and 1891, on
the ground that it had been finally adjudged that he was the owner of one
undivided half of the plantation, and therefore that the receiver had improperly
collected the rent therefor? and second, if he was entitled to such set-off, was
he precluded from obtaining the benefit of it in the state courts by the fact that
the receiver was an officer of the federal court, or by any proceedings had in
that court? The contention of the receiver is that the defendant's right to onehalf of the plantation dates from the decree in 1891, while the defendant insists
that it dates from the conveyance in 1858, and that the decree only determined a
pre-existing right. We concur in the latter view. As a rule, courts do not create,
but simply determine, rights. The adjudication that the defendant was entitled to
an undivided one-half of the plantation was neither a donation nor an equitable
transfer of property in lieu of other claims. It was a determination of a preexisting right, and that right dates, and could only date, from the conveyance in

The conclusions of the circuit court of the United States, as expressed in an

opinion, and passed into a decree,a decree not appealed from, and, therefore,
final between the parties,are to the same effect. Such opinion and decree
appear in the record. In the opinion, which was announced after the decision of
this court in 139 U. S. 388, 11 Sup. Ct. 598, it was said: 'From this last opinion
and decree of the supreme court in the matter, we are forced to conclude that
the portions of lands set off and adjudged to the heirs of Julia Morgan and heirs
of O. H. Kellam, Jr., were so set off and adjudged to them as the owners thereof
in their own right as the heirs of Julia Morgan and O. H. Kellam, Jr., who were
the heirs of Narcisse Deeson, the wife of Oliver J. Morgan, and not to them in
any way as the heirs of Oliver J. Morgan, or as creditors or claimants of his
estate. * * * The heirs of Julia Morgan and Oliver H. Kellam, Jr., participated in
the fund recovered in the original case of Gay, Administrator, v. Morgan,
Executor, et al.; but the careful reading and consideration which we have given
the opinions and decrees of the supreme court, and particularly the
supplemental decree in all the cases consolidated, give us the firm impression
that the court intended to hold and declare that the portions recovered by said
heirs were theirs of right, and that they were to have them, not only free of the
claims of creditors of the estate of Oliver J. Morgan, but free from all costs and
claims except as in the several decrees adjudged, and as thereafter might be
necessary in effecting partition.' And in the decree it was, among other things,
adjudged that 'so much of said decree of June 2, 1893, as the same is of record
herein, as charges or attempts to charge the said John A. Buckner and Etheline
Buckner as the owners of one-half of Melbourne plantation, or that attempts to
charge their said one-half of said Melbourne plantation with lien privilege to

contribute to, or recuse the contribution of, the sum of seven thousand, three
hundred and forty-seven 30/100 dollars, to the payment of costs, disbursements,
and solicitors' fees allowed by the court in and for the prosecution of the bill
and action in case No. 6,612 of the cases herein consolidated, be, and the same
are, canceled, abrogated, annulled, and taken from said decree, and that the said
John A. Buckner and Etheline Buckner be, and are, now decreed to take and
hold said one-half of the said Melbourne plantation allotted to them free from
said charge and liability for said costs, disbursements, and solicitors' fees
charged against them in said decree of June 2, 1893, as contribution to the
expenses of the prosecution of said cause No. 6,612, and of the causes herein
consolidated.' Obviously, the effect of this last decree was to materially modify
the terms of prior orders and decrees, and to change the relations of the
defendant, as the owner of one-half of the Melbourne plantation, to the

The provision in the decree of this court in reference to the division between the
creditors and the heirs of the moneys in the hands of the receiver after paying
his expenses and compensation is one evidently applicable in case of the sale of
the entire property, and cannot be construed as charging against the defendants,
the heirs of Mrs. Morgan, any share of the costs incurred by the creditors of
Mr. Morgan in their efforts to subject his property to the payment of their debts.

Rents follow title, and the owner of the realty is the owner of the rent. So that
from 1884 to 1891, and while the question of title was in dispute, the defendant
was paying to the receiver rent for an undivided half of the plantation,
property which was absolutely his own, and which the receiver ought not to
have had possession of. The rent thus collected belonged to defendant, and
could not be taken by creditors of Morgan, or appropriated to pay the cost of
their lawsuits. So it is that the receiver, having in his possession money
belonging to the defendant, to wit, the rent of one-half the property from 1884
to 1891, now asks a judgment which shall compel defendant to pay him a
further sum. This cannot be. This is not a case in which a defendant indebted to
an estate which is insolvent, and can therefore pay its creditors only a pro rata
amount, seeks to set off a claim against the estate in absolute payment of a debt
due from him to the estate; thus obtaining a full payment, which no other
creditors can obtain. For here one undivided half of the plantation was never
the property of the estate vested in the receiver. It was wrongfully taken
possession of by him. The rent therefor all the while belonged to the defendant,
and the receiver holds it, not as money belonging to the estate, but to the
defendant. To allow him to keep that money, and still recover an additional
sum from the defendant, would be manifestly unjust.

It is said in the brief that the court first acquiring jurisdiction has a right to
continue its jurisdiction to the end. We fail to see the application of this. The
receiver voluntarily went into the state court, and, having voluntarily gone
there, cannot question the right of that court to determine the controversy
between himself and the defendant. A similar proposition was often affirmed in
cases of bankruptcy, although by section 711, Rev. St., the courts of the United
States are given exclusive jurisdiction 'of all matters and proceedings in
bankruptcy.' Mays v. Fritton, 20 Wall. 414; Winchester v. Heiskell, 119 U. S.
450, 7 Sup. Ct. 281, and cases cited in the opinion. The same rule applies here.
The question presented is not how the estate belonging to the receiver shall be
administered, but what is the estate belonging to him. The two questions are
entirely distinct. Further, the right to sue a receiver appointed by a federal court
without leave of the court appointing him is granted by the act of August 13,
1888, c. 866, 3 (25 Stat. 436). A counterclaim or set-off comes within the
spirit of that act. And certainly no objection can be made to the allowance of a
set-off, when, as here, it is simply in harmony with the decrees of the federal
court, and in no manner questions their force of efficacy.

The jurisdiction of the state court is therefore clear, and the judgment of the
supreme court of Louisiana is affirmed.